Is Lessig’s Free Culture just a modern Das Kopyright?

A new paper from the Progress & Freedom Foundation misinterprets Lawrence …

April appears to be shaping up as National Slag Lawrence Lessig Month. Last week, there was RedState's ill-starred effort to turn the Stanford legal scholar (and Barack Obama supporter) into the next Jeremiah Wright. Now, the Progress and Freedom Foundation is stirring dull roots with spring rain, unleashing a fresh attack on Lessig's four-year-old book Free Culture in a paper released Monday by senior fellow Thomas Sydnor. The argument itself is frankly bizarre: Sydnor brands Lessig's views on copyright as a species of "quasi-socialist utopianism," and he peppers his critique with breathless invocations of Soviet dictatorship and Orwellian panopticons. But the piece also provides potent testament to a fissure within the contemporary right, as Lessig's ideas find a friendly audience among some libertarian public intellectuals, leaving the content industry with a shrinking stable of credible defenders.

"Tragedy and Farce: An Analysis of the Book Free Culture" begins with an oddly protracted condemnation of Lessig's tone. Sydnor complains that Lessig "literally" demonizes copyright holders (though a search of Lessig's work for "MPAA" and "foul spawn of Satan's loins" yielded no hits), ultimately offering the reader this gem, worthy of Epimenides:

The roles of scholar and demagogue clash so fundamentally that anyone trying to be both will end up looking like an absurd hypocrite. That is what happened when Lessig literally demonized copyright owners.

The remainder of the analysis consists of a series of increasingly-strained analogies between Lessig and the likes of Karl Marx, Fidel Castro, and Josef Stalin. Sydnor routinely plucks statements from context to give them a meaning different from, or even directly opposed to, Lessig's fairly clear intent.

For instance, we learn that Lessig wrote, in the first edition of his book Code, of his "impulse to sympathize" with those on the left who are "radically skeptical" about using property rights in personal information to protect privacy. We do not learn that the long quotation that follows is Lessig's summary of an anti-market view of which he declares himself "not convinced." (Lessig originally endorsed a property right in personal data; he has since altered his view, and now supports treating Web sites' privacy policies as binding contracts.)

Sydnor similarly presents selective quotations from a passage in Code where Lessig describes his impression of life in communist Vietnam as surprisingly free and unregulated in certain respects. Lessig's point is that despite a formal ideology of state omnipotence, the lack of an effective architecture of control leaves many ordinary Vietnamese relatively unfettered in their day-to-day interactions; institutional structure often determines reality more powerfully than official philosophy. Possibly Lessig is mistaken about modern Vietnamese life, but Sydnor, in what seems like a willful misreading, deploys the anecdote to depict Lessig as a disciple of Ho Chi Minh.

When Sydnor finally turns to Free Culture and to Lessig's proposals for reforming the American copyright regime, he lapses into full-blown self-parody. According to the paper, Lessig's view is that "the United States should follow the example of the Soviet Union: it should eliminate copyrights and nationalize the production of speech." In response to Lessig's claim that he offers a choice, not between "property and piracy" but between "different property systems" or copyright regimes, Sydnor invokes the horror of 20th century "experiments" with "different property systems" under which "millions were murdered and billions were impoverished and enslaved."

Precisely how this analogy works is unclear, but presumably Mickey Mouse plays the role of a Ukranian kulak. Lessig, contacted in London by Ars, is incredulous at this portrait of his views. "I have no idea what he's talking about," Lessig told us, "but this strikes me as so extraordinarily ignorant of the argument; I'm not opposed to intellectual property." Rather, Lessig (himself a former libertarian) believes his argument is in many respects a type of familiar conservative complaint: "A bunch of insiders in Washington have taken this form of regulation way too far."

Some of Sydnor's fiercest polemic concerns Lessig's qualified endorsement of a proposal by Harvard law professor William Fisher to compensate copyright holders harmed by online file sharing via a tax on technologies used to disseminate copyrighted works. (It's worth noting that this discussion occupies approximately two pages of a 305-page book whose core argument, involving the stifling effects of the current copyright regime, is barely mentioned in the paper.) There are any number of valid criticisms to be raised against this proposal, to be sure, but Sydnor's harshest attacks here depend on either misrepresenting the proposal or targeting the precise elements of Fisher's plan that Lessig disowns.

For example, Fisher's proposal entails determining the appropriate level of compensation for creators whose works are pirated by using digital watermarks to assess the prevalence of different songs and movies on file-sharing networks. This, Sydnor writes, would introduce a "literally Orwellian" system of surveillance, allowing the government to "monitor everything that you watch, hear, read or do." But Lessig says the only "monitoring" he has in mind is a form of statistical sampling, which would no more require tracking of each individual's consumption than "Nielsen requires you to monitor everyone's viewing."

Moreover, Lessig explicitly distinguishes his view from Fisher's by urging that such a system should be a temporary expedient that complements, but does not replace, traditional copyright, anticipating that we will soon see a transition to new and more viable models of content distribution premised on old-fashioned access charges for content. Sydnor also heaps ample scorn on Fisher's notion of "semiotic democracy." But here, too, Lessig makes a point of distancing himself from Fisher's more radical proposals, averring that it would be sufficiently democratizing to ease restrictions on derivative uses of copyrighted material in novel creative work.

All of which is to say that "Tragedy and Farce" is a hyperbolic and stunningly dishonest screed, remarkable less for any contribution it makes to the debate over intellectual property and more for the fact that a well-funded Washington think-tank saw fit to publish it... and indeed, to publish it four years after the publication of Free Culture, whose author has recently turned his focus to other issues.

Which means that perhaps the most (if not the only) genuinely illuminating portion of the paper is the first paragraph, where Sydnor explains the impetus behind it, pointing to a recent blog post by Ars contributor and Cato Institute scholar Tim Lee. Lee, to Sydnor's dismay, expressed sympathy for Lessig's views on copyright. Lessig himself points to prominent libertarian thinkers from Richard Epstein to Milton Friedman who share his opposition to the excessive extension, and in particular to the retroactive extension, of copyright terms.

This, perhaps, is ultimately at the heart of the frenetic attempts to paint Lessig as one of those rogue Soviet generals populating unimaginative spy films, forever pining for the lost glory of the Marxist dream. Much ink has been spilled in recent years over the "conservative crack up," the fragmentation of the American right's Cold War alliance between free-marketers and social or religious conservatives.

But the debates over intellectual property in the digital era are creating a second divide within the free-market camp, between corporate interests and the libertarian intellectuals and pundits who have so often provided the theoretical support for business-friendly policies. If libertarians, as Lessig puts it, "start to defect" from a strong-IP stance, copyright incumbents may be left with only their wholly-owned-subsidiaries as defenders.